DOJ won't defend '96 marriage law

President Barack Obama has ordered the Justice Department to drop its defense of a central part of the 1996 law that bars official federal government recognition of same-sex unions - a long-sought goal of gay-rights activists.

Attorney General Eric Holder sent letters to congressional leaders Wednesday announcing that the administration has concluded that the provision of the Defense of Marriage Act is unconstitutional and that his department will no longer defend the law in a series of pending lawsuits challenging the statute.

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“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder said in a statement.

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

DOMA was written by same-sex marriage opponents who feared that if one or more states permitted such unions, both the federal government and other states would be required to recognize them. The statute has two main provisions. The one that the administration contends is unconstitutional limits the federal definition of marriage to “a legal union between one man and one woman as husband and wife.”

Another provision, not at issue, asserts that states need not recognize such unions just because other states do.

White House press secretary Jay Carney said Wednesday that the Justice Department’s action did not reflect a change in Obama’s own views.

“The president’s personal view on same sex marriage … is distinct from this legal decision,” Carney said. He said he had nothing to add to recent comments from Obama about his “evolving” views on same-sex marriage, which he opposed during the 2008 campaign but had embraced earlier in his political career.

“He grappling with the issue,” Carney said, while denying any connection between that process and the administration’s announcement on DOMA.

Since Obama came into office, his administration has said it was obligated by tradition to defend several statutes that discriminate against gays and lesbians, including DOMA and the recently repealed “don’t ask, don’t tell” ban on gays openly serving in the military. The Justice Department has fought court challenges to those statutes, even though Obama has said he’s opposed to the laws and would seek their repeal.

In 1996, DOMA passed the Congress overwhelmingly. It cleared the Senate on an 85-14 vote, the House by 342 to 67 and was signed into law by President Bill Clinton, who was weeks from re-election. However, Holder said court rulings since that time have undermined its validity.

“Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s ‘don’t ask, don’t tell’ policy. Several lower courts have ruled DOMA itself to be unconstitutional,” Holder said.

However, social conservatives said Obama was simply trying to please gays and lesbians who are a key constituency for the Democratic Party and for the president in his re-election bid next year.

“This is purely political for them. They see a homosexual base that might be small but it’s very wealthy and they want to try to appease them and, by doing so, they’re declaring that the court and Congress are irrelevant,” said Tom McCloskey of Family Research Council Action.